Violation of personality rights or person of contemporary history

Requirements for a feature film portrait

I. Consent

As the lawyers like to point out, the consent of the person depicted in a work is generally required.

• section 22 KunstUrhG states that the depiction of a person, including their filming, is only permitted with their consent. According to the Federal Court of Justice (BGH) (GRUR 2000, 715 para. 21 – “Der blaue Engel”), the fact that the persons depicted are embodied by actors is irrelevant, as Sections 22, 23 KunstUrhG apply as long as the person is still recognisable (Specht in: Dreier/Schulze, Section 22 KunstUrhG, para. 2). Furthermore, the BGH states that it is sufficient for a person to be affected if some addressees can identify them (BGH NJW 2009, 3576). Furthermore, it is irrelevant for the applicability of the KunstUrhG whether names, places and the time of the events have been changed (Eick-meier/Eickmeier, “Die rechtlichen Grenzen des Doku-Dramas”, ZUM 1998, 1 (3)), as long as a person remains identifiable.

Since the risk of identifiability, at least by a limited group of addressees, almost always remains, the need for consent pursuant to Section 22 KunstUrhG must be assumed. Otherwise, there is the possibility that the person who is unlawfully depicted could assert a claim for damages, a claim for injunctive relief pursuant to Section 1004 (1) sentence 1 BGB and a claim for restitution of the proceeds of the publication (e.g. compensation for use in the amount of the usual licence fee) pursuant to Section 812 (1) Alt 2 BGB.

II. person of contemporary history

However, the question of whether events that actually took place and document or record the lives and characters of those involved may be filmed is also legally relevant. This is because consent is then no longer generally required.

According to the common definition under Section 23 KunstUrhG, contemporary history includes all phenomena in the life of the person depicted that are perceived by the public, attract their attention and are the subject of interest or curiosity among broad circles. In contrast to the traditional categorisation into absolute and relative persons of contemporary history, the BGH carries out a case-by-case assessment of the conflicting fundamental rights (BGH GRUR 2011, 259 para. 14 – “Rosenball von Monaco”; BGH GRUR 2009, 86 para. 12 – “Gesundheitszustand von Prinz Ernst August”). The general right of personality of the depicted person and the freedom of art (Art. 5 para. 1 and 3) in favour of the film producer are decisive in the balancing of interests.

In general, the courts state that the greater the public interest in the information, the less important the interest of the person concerned must be compared to the public interest in the information. Accordingly, conversely, only a serious impairment of the right of personality cannot be justified by artistic freedom.The European Court of Human Rights (ECtHR 2014, 284, para. 46) has defined the following as relevant balancing criteria:

The contribution to a debate of general interest, the degree of publicity and the subject matter of the reporting, the previous behaviour of the person depicted, the content, form and effect of the publication and the circumstances in which the photographs were taken.

III Exception to the exception

If one comes to the conclusion that the event belongs to the realm of contemporary history, the depiction in this context is nevertheless not possible without limitation. Rather, the restriction of Section 23 (2) KunstUrhG applies accordingly. Accordingly, the depiction is inadmissible if it violates a legitimate interest of the person depicted from contemporary history.

1. The accuracy of the filmic depiction

Any limits to artistic freedom lie in the accuracy of the depiction. In principle, the persons concerned have a right to be protected from a distorted depiction. Therefore, depictions that seek to convey the impression of a truthful representation of the story and the people involved, but do not actually correspond to reality, are regularly problematic.

In the case of feature films, even if they are based on a true story and have been well-researched, a presumption of fictionality is regularly created for what is depicted, meaning that the content is generally considered to be fictitious, as this is a common means of artistic representation.

Against this background, it is not necessary for feature films to be historically accurate, as they are not required to be a truthful representation of events. When it comes to insights into the social environment, everyday life and personal conversations of the film characters, the viewer does not expect a truthful representation, as such content is often undocumented and therefore necessarily invented.

If the presumption of fictionality exists from an art-specific point of view, the argument of distortion cannot lead to an exception to the exception pursuant to Section 23 (2) KunstUrhG.

2. Depiction of intimacy and privacy

The closer depictions come to the area of human dignity (Art. 1 I GG), the more likely they are to be subject to the prohibition of depiction under Section 23 (2) KunstUrhG. This means that artistic freedom is restricted when privacy is affected. This refers to a person’s innermost thoughts and feelings, in particular sexuality, nudity and, under certain circumstances, illness. The background to this is that it is unreasonable to expect proof of the truth in this intimate area and it is sufficient for a serious violation that the viewer imagines that they can see what really happened.

Here too, however, it is always necessary to weigh up the individual case, as the mere depiction of a medical condition or a sexual relationship, for example, does not necessarily constitute an unlawful violation of privacy.

In short

• If the person depicted has given their consent, this makes life much easier for producers and directors
• Areas of contemporary history can be depicted without the consent of the person depicted
• When weighing up the infringement of personal rights and artistic freedom, an art-specific consideration is required;
• The more the “likeness” deviates from the “original image”, the more the protection of artistic freedom comes to the fore;
• In narrative art forms, an “aesthetic reality” and “more real reality” is created, which results in a presumption of fictionality, even if real people are recognisable;
• There is no absolute right of the person concerned not to be modelled on a character in an artistic work.